California Employers Can Learn from the NFL’s Recent Mishandling of Employee Misconduct

By: Christopher P. Wesierski and Patricia M. Alleborn

Football season has just begun, but America has been tuning in to more than just the game. NFL players’ off-the-field misconduct have been making headlines. Last week, TMZ released a graphic video of Ravens player Ray Rice punching his then-fiancé, now-wife Janay Palmer Rice, knocking her unconscious, and impassively dragging her body out of an elevator. Following the release of the video, Rice’s original punishment from the NFL, a two-game suspension for violating the Public Conduct Policy, was increased to an indefinite suspension from the league. Five days later, Vikings player Adrian Peterson, considered one of the best running backs in the league, was indicted for reckless or negligent injury to his child. Peterson reportedly used a switch, a small tree branch stripped of leaves, to repeatedly strike his four year old son. Peterson maintained that he was disciplining the child and any injuries were unintentional. A second accusation has since surfaced that Peterson was involved in a separate, prior incident of child abuse. Thus far, Peterson’s team only suspended him for one game. On July 15, Panthers Greg Hardy was convicted of assaulting and threatening his ex-girlfriend. The Panthers permitted Hardy to play the first game of the season, but after receiving public criticism, decided to deactivate Hardy until further notice. The NFL has not penalized either Hardy or Peterson until resolution of their criminal cases. These scandals have caused a PR nightmare for the NFL and ignited national criticism towards how the NFL deals with its’ players’ off-the-field, violent behavior. More broadly, these scandals help illustrate four guidelines that California employers can follow to protect themselves from liability, as well public criticism, when handling off-duty employee misconduct.

First, before determining appropriate disciplinary action, employers should conduct an adequate investigation. The NFL’s investigation into Rice’s misconduct was obviously inadequate. The NFL never asked the Casino for a copy of the surveillance video, who later stated it would have provided it upon the league’s request. It also alleged that the NFL had received the video five months prior to its release. The NFL should have made every effort to investigate facts, speak with eyewitnesses, and ask for any surveillance footage. After conducting an adequate investigation, the NFL should have afforded an opportunity for Rice to be heard. Only after proper consideration of all of the facts, should the NFL have determined the appropriate punishment. Now, without any justification for its failure to obtain and/or view the video, America is wondering what happened. The inadequate investigation suggests that someone is lying or the NFL simply turned a blind eye to keep a star player on the field. The NFL and Commissioner Roger Goodell’s integrity have been undermined. When the community sees that an employer, such as the NFL, mishandles an investigation, it can be just as damaging to the company’s reputation as the misconduct itself.

Second, employers need to develop clear, written policies governing off-duty misconduct. The Rice situation shows that inconsistent and ambiguous policies may undermine the policies’ effectiveness and provide grounds for an employee to evade discipline. The league’s Public Conduct Policy gives the Commissioner the authority to indefinitely suspend players. Article 46, Section 4, of the NFL’s collective bargaining agreement is essentially a prohibition against double jeopardy; it prohibits a player from being punished twice for the same conduct. Despite the Commissioner’s authority to suspend Rice, the NFL Player’s Union has a strong basis for appealing Rice’s suspension on the grounds that Rice’s suspension violated Article 46, Section 4, in two different ways: first, the Ravens dropped Rice and then the NFL punished him second time by issuing an indefinite suspension; and, secondly, the NFL punished Rice on two different occasions for the same misconduct. By failing to have clearly defined policies and procedures, the NFL may be forced to reinstate Rice and possibly be held liable for his losses incurred as a result of the unauthorized discipline.

Third, any disciplinary action must fit the crime and be consistently applied to all employees, regardless of an employee’s value to the company. A month after Rice’s original two-game suspension, the NFL suspended Broncos player Matt Prater for (according to his attorney) drinking beers on vacation, which was in violation of the league’s substance abuse policy. Prater was suspended four games, receiving twice the punishment Rice originally received. There is no reasonable basis for this disparate treatment among players. Critics suggest that the punishment is adjusted according to the player’s value. Employers would do well to avoid such inconsistent disciplinary action within their own companies. Otherwise, a California employee could use the disparate treatment as a basis for alleging that he or she was discriminated against.

Lastly, the policies must be fairly and equitably enforced. Under the NFL’s personal conduct policy, the league may suspend a player “for failing to avoid conduct detrimental to the integrity of, and public confidence in, the NFL.” America is suspicious of the recent influx of domestic violence cases. The pattern of domestic violence among players suggests that this is either horrible happenstance, or the NFL has covered up other instances of abuse. Employers should not wait to dole out disciplinary action if and when the misconduct becomes publicly known. There needs to be a common understanding of what conduct constitutes a breach of policies and that conduct needs equitably enforced.

This article is a cursory overview of lessons employers can learn from recent NFL mishandling of employee misconduct. For over 25 years, Wesierski and Zurek LLP has regularly advised employers regarding work place issues, including how to protect themselves from liability when handling off-duty misconduct. If you are an employer and need further assistance navigating this difficult field, please contact us.